NORMAN v. CAMDEN COUNTY CORRECTIONAL FACILITY et al

Filing 27

OPINION. Signed by Judge Jerome B. Simandle on 3/25/2019. n.m.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

KEVIN NORMAN,

HONORABLE JEROME B. SIMANDLE
Plaintiff,
Civil Action
No. 16-9102(JBS-AMD)

v.
CAPTAIN CARLA TAYLOR and
WARDEN DAVID OWENS,

OPINION

Defendants.

APPEARANCES:
Kevin Norman, Plaintiff Pro Se
37 Magnolia Court
Sicklerville, NJ 08081
SIMANDLE, United States District Judge:
INTRODUCTION
Before the Court is plaintiff Kevin Norman’s (“Plaintiff”)
December 18, 2018 Motion to Appoint Pro Bono Counsel
(“Plaintiff’s Motion”). (D.E. 26.)
For the reasons set forth below, the Court will deny
Plaintiff’s Motion without prejudice.
BACKGROUND
Plaintiff initiated this matter on December 9, 2016 with a
civil rights Complaint pursuant to 42 U.S.C. § 1983 against
Camden County Correctional Facility (“CCCF”) and Captain Carla
Taylor and Warden David Owens (Taylor and Owens referred to as

“the Individual Defendants”) for allegedly unconstitutional
conditions of confinement. (D.E. 1.) On October 20, 2017, this
Court dismissed with prejudice Plaintiff’s claims against
defendant CCCF and proceeded Plaintiff’s claims against the
Individual Defendants. (D.E. 4; D.E. 5.)
Before the Individual Defendants answered the Complaint,
Plaintiff moved on November 20, 2017 for appointment of pro bono
counsel. (D.E. 7.) On November 29, 2017, Magistrate Judge Ann
Marie Donio denied Plaintiff’s request without prejudice. (D.E.
11 (“[T]he Court finds that an appointment of pro bono counsel
would be premature at this stage”).)
On December 19, 2017, the Individual Defendants filed an
Answer to the Complaint. (D.E. 15.) Thereafter, the parties
participated in several scheduling conferences before Judge
Donio.
On November 13, 2018, the Individual Defendants moved for
summary judgment. (D.E. 22.) On December 18, 2018, Plaintiff
filed opposition to their summary judgment motion and requested
further extension of time. (D.E. 25.) That same day, he filed
his Motion To Appoint Pro Bono Counsel (D.E. 26), which the
Court now considers in the instant Opinion.1

1

At this time, the Court expresses no decision in the instant
Opinion on the Individual Defendants’ pending summary judgment
motion. (D.E. 22.)
2

DISCUSSION
Indigent persons raising civil rights claims have no
absolute right to counsel. See Parham v. Johnson, 126 F.3d 454,
456–57 (3d Cir. 1997). As a threshold matter, there must be some
merit in fact or law to the claims the plaintiff is attempting
to assert. See Tabron v. Grace, 6 F.3d 147, 155 (3d Cir. 1993).
If the court finds that it does, the court should consider the
following factors: (1) the plaintiff's ability to present his or
her own case; (2) the complexity of the legal issues; (3) the
degree to which factual investigation will be necessary and the
ability of the plaintiff to pursue such investigation; (4) the
amount a case is likely to turn on credibility determinations;
(5) whether the case will require the testimony of expert
witnesses; and (6) whether the plaintiff can attain and afford
counsel on his own behalf. See id. at 155–56, 157 n.5; see also
Cuevas v. United States, 422 Fed. Appx. 142, 144–45 (3d Cir.
2011) (reiterating the Tabron factors). The Tabron list of
factors is not exhaustive, nor is a single factor determinative.
Parham, 126 F.3d at 458.
As the Court permitted the Plaintiff’s Complaint to proceed
against the Individual Defendants when it performed sua sponte
screening under 28 U.S.C. § 1915(e)(2) (D.E. 4; D.E. 5), there
is sufficient merit to continue analyzing the Tabron factors.

3

Plaintiff argues the appointment of counsel is warranted
because he “lack[s] the ability to present an effective case.”
(D.E. 26 at 3.)2 He alleges that “[t]here are complex legal
issues that only a skilled lawyer can address to the court.”
(Id.) However, Plaintiff’s Complaint stated his case in a manner
to survive sua sponte screening, which indicates that he is able
to present issues to the Court. His more recent submissions to
the Court are also understandable and address the issues. This
factor weighs against the appointment of counsel.
Plaintiff is no longer incarcerated (D.E. 3), which enables
him to seek out the services of an attorney on his own and to
otherwise fully participate in the litigation and investigation
of his claims.3 Plaintiff's ability to obtain documents related
to his claims of, among other things, purported CCCF drinking
water contamination (see D.E. 1 at § III(C)), also will not be
limited due to his former incarceration. This factor also weighs
against of appointment of counsel.
Based on the facts alleged in the Complaint, the Court
determines the issues that Plaintiff alleges are not overly

2

His December 2016 in forma pauperis application indicated that
he is a high school graduate. (D.E. 1-1 at 5.) He is fluent in
English and expresses himself well.

3

Plaintiff may want to seek assistance in finding a lawyer
through the Camden County Bar Association Lawyer Referral
Service, Telephone No. 856-482-0618.
4

complex so as to warrant the appointment of counsel at this
time. Plaintiff complains of dirty drinking water, sleeping on
the floor, dust and dirt in his cell, and headaches -- all
relatively straightforward allegations. Plaintiff's medical
records with respect to his scalp “infect[ions]” and his
“rash[es]” (D.E. 1 at 2) could provide the relevant evidence
with respect to his claims, meaning the case would not be
“solely a swearing contest.” Parham, 126 F.3d at 460. These
factors weigh against the appointment of counsel at this time.
Finally, the sixth Tabron factor requires this Court to
analyze whether Plaintiff is able to retain and afford counsel.
See 6 F.3d at 156. Plaintiff is proceeding in forma pauperis in
this case and there is no indication that he is able to retain
and afford counsel. He alleges that he is “unable to afford an
attorney on my own.” (D.E. 26 at 3.) Plaintiff's indigency,
however, is not sufficient to warrant counsel in and of itself.
Many pro se plaintiffs are indigent yet are denied pro bono
counsel upon a weighing of all Tabron factors. The Court
considers this factor to be neutral.
On balance, the Tabron factors weigh against appointing
counsel at this time. Plaintiff may again request the
appointment of counsel in the future by submitting a new motion
for the appointment of counsel that addresses the Tabron prongs.

5

IV.

CONCLUSION
For the reasons stated above, Plaintiff’s Motion to Appoint

Pro Bono Counsel is denied without prejudice. An appropriate order
follows.

March 25, 2019
Date

s/ Jerome B. Simandle
JEROME B. SIMANDLE
United States District Judge

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